Citation Nr: 0908462
Decision Date: 03/06/09 Archive Date: 03/12/09
DOCKET NO. 08-22 428 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUES
1. Entitlement to service connection for a right knee
disorder as secondary to service-connected disability.
2. Entitlement to service connection for a right hip
disorder as secondary to service-connected disability.
3. Whether new and material evidence has been received to
reopen a claim of entitlement to service connection for a low
back disorder as secondary to service-connected disability,
and if so, whether service connection is warranted.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Nadine W. Benjamin, Counsel
INTRODUCTION
The Veteran (appellant) served on active duty from September
1956 to January 1959.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a February 2008 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Nashville, Tennessee.
In February 2009, the Veteran appeared before the undersigned
Veterans Law Judge and gave testimony in support of his
claim. A complete transcript is of record.
Please note this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2008). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
At his hearing before the Board in February 2009, the veteran
requested a higher rating for his service-connected residuals
of a fracture of the left tibia and fibula with left knee and
ankle arthritis. This matter is referred to the RO for
appropriate action.
The issues of entitlement to service connection for a right
knee disorder, a right hip disorder, and a low back disorder
all as secondary to service-connected disability are
addressed in the REMAND portion of the decision below and are
REMANDED to the RO via the Appeals Management Center (AMC),
in Washington, DC.
FINDINGS OF FACT
1. The RO denied service connection for a low back disorder
in August 2005. The Veteran was informed of this decision
that same month, and he did not disagree with the
determination.
2. The evidence submitted subsequent to the August 2005
decision relates to an unestablished fact necessary to
substantiate the claim and raises a reasonable possibility of
substantiating this claim for secondary service connection
for a low back disorder.
CONCLUSIONS OF LAW
1. The August 2005 RO decision that denied service
connection for a low back disorder is final. 38 U.S.C.A. §
7105 (West 2002); 38 C.F.R. § 20.1103 (2008).
2. New and material evidence has not been received to reopen
the claim for service connection for a low back disorder. 38
U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008);
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008). In
this case, the Board is reopening the claim decided below
thus granting in full the benefit sought on appeal as to that
issue. Accordingly, assuming, without deciding, that any
error was committed with respect to either the duty to notify
or the duty to assist, such error was harmless and need not
be further considered.
To reopen a previously denied Board decision, or an RO
decision that has become final, new and material evidence
must be received. 38 U.S.C.A. §§ 5108, 7104, 7105; 38 C.F.R.
3.156(a). Regardless of the RO's actions, the Board must
make an independent determination on whether new and material
evidence has been submitted. See Jackson v. Principi, 265
F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380
(Fed. Cir. 1996).
Pursuant to 38 U.S.C.A. § 5108, the Secretary must reopen a
finally disallowed claim when new and material evidence is
presented or secured with respect to that claim. Knightly v.
Brown, 6 Vet. App. 200 (1994). Only evidence presented since
the last final denial on any basis will be evaluated in the
context of the entire record. Evans v. Brown, 9 Vet. App. 273
(1996). In determining whether evidence is new and material,
the credibility of the evidence is generally presumed.
Justus v. Principi, 3 Vet. App. 510, 512-513 (1992).
"New" evidence means existing evidence not previously
submitted to agency decisionmakers, that is neither
cumulative nor redundant of the evidence of record at the
time of the last prior final denial of the claim sought to be
reopened. "Material" evidence means existing evidence that,
by itself or when considered with previous evidence of
record, relates to an unestablished fact necessary to
substantiate the claim and raises a reasonable possibility of
substantiating the claim. See Evans v. Brown, 9 Vet. App.
273, 283 (1996); 38 C.F.R. § 3.156.
The RO denied the Veteran's claim for service connection for
a back disorder as secondary to service-connected disability
in August 2005. The Veteran was informed of this decision
that same month. He did not disagree with the decision. The
August 2005 decision is final. See 38 U.S.C.A. § 7105 (West
2002); § 20.1103 (2008).
The evidence of record at the time of the August 2005 RO
determination included the Veteran's service treatment
records, VA treatment records dated from 2001 to 2003, and a
VA examination report of August 2003.
The service records showed no complaint, diagnosis, or
treatment for a low back disorder. Outpatient treatment
records showed no indication of a back disorder, and a back
disorder was not found on the VA examination. The RO denied
the claim finding that the Veteran did not have a back
disorder and that service connection was therefore not
warranted.
In July 2007, the Veteran requested secondary service
connection for a back condition, and this appeal ensued.
Evidence submitted since the August 2005 decision includes VA
outpatient treatment records dated from 2003 to 2007, and a
VA examination report of January 2008 as well as hearing
testimony before the undersigned Veterans Law Judge.
The VA examination report did not include findings regarding
the low back. However, the VA outpatient treatment records
show treatment for various disorders including complaints of
back pain. In October 2002, X-rays showed degenerative disc
disease of the lumbar spine. Thus, these records are new
since they were not previously of record, and they are
material as they confirm the presence of a lumbar disorder,
which was not previously shown. As such, the records raise a
reasonable possibility of substantiating the claim.
The evidence submitted by itself or when considered with
previous evidence of record, does relate to an unestablished
fact necessary to substantiate the claim, and does raise a
reasonable possibility of substantiating the claim. Thus,
new and material evidence has been received and the claim is
reopened. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156.
ORDER
New and material evidence has been received; therefore, the
claim for service connection for a back disorder as secondary
to service-connected disability is reopened.
REMAND
The Veteran seeks service connection on a secondary basis for
a low back disorder, right knee disorder, and right hip
disorder.
In a December 2007 statement, the Veteran reported that he
received treatment at a VA facility for his hip condition.
He requested that VA records from July 2007 to the present be
obtained. The record reflects that the RO indicated that the
VA treatment records showed that the Veteran has right knee
osteoarthritis on X-ray in June 1995 and again in October
2007. The Board is unable to locate these records in the
file. The most recent VA outpatient treatment records in the
file are dated in July 2007.
The June 1995 report and any available additional VA records
may be material to the claims since they may provide medical
evidence regarding the current status of the Veteran's
disability picture regarding his right knee, his right hip,
or his back. In this regard, it is noted that records
generated by VA facilities that may have an impact on the
adjudication of a claim are considered in the constructive
possession of VA adjudicators during the consideration of a
claim, regardless of whether those records are physically on
file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998);
Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore,
an effort should be made to obtain these VA records and any
other pertinent VA treatment records so they can be
associated with the Veteran's claims folder.
The Veteran is service-connected for left hip and left knee
disabilities, and he has claimed that he has a right knee,
right hip, and low back disorders as secondary to those
disabilities. He has not been examined regarding his low
back, right knee, and right hip complaints. His
representative has requested that the claim be remanded for
an examination to include diagnostic tests. See 38 U.S.C.A.
§ 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4) (2008);
McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). This
should be accomplished on remand.
The appellant is hereby notified that it is his
responsibility to report for any examination scheduled, and
to cooperate in the development of the case, and that the
consequences of failure to report for a VA examination
without good cause may include denial of the claim. See 38
C.F.R. §§ 3.158 and 3.655 (2008).
Accordingly, the case is REMANDED for the following action:
(Please note, this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2008). Expedited
handling is requested.)
1. Obtain the veteran's treatment
records dated since July 2007 from the
Nashville VAMC. Also, attempt to locate
and associate with the claims file the
noted 1995 X-ray reports documented in
the statement of the case. If no
additional records exist or can be
located, the case file should be
documented accordingly.
2. Thereafter, schedule the Veteran for
a VA orthopedic examination of his low
back, right hip, and right knee. The
entire claims file and a copy of this
remand must be made available to the
examiner for review. All indicated tests
and studies should be accomplished, and
all clinical findings should be reported
in detail.
The examiner should identify all current
low back, right knee, and right hip
disabilities.
With respect to each diagnosed
disability, the examiner should render an
opinion as to whether it is at least as
likely as not (i.e., a 50 percent or
greater probability) that the disability
was either caused by or aggravated by the
service connected left hip disorder
and/or the service-connected left knee
disorder.
The examiner should set forth a complete
rationale for the conclusions reached in
the report.
3. Finally, readjudicate the Veteran's
claims on appeal. If any claim remains
denied, provide the Veteran with a
supplemental statement of the case and
allow an appropriate time for response.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate
action must be handled in an expeditious manner. See 38
U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
______________________________________________
P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs